New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

TED RAY BRANNAN v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Thomas C. Faris, Winchester, Tennessee, for appellant, Ted Ray
Brannan.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Stephen Blount, Assistant District Attorney General, for
appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
The defendant, Ted Ray Brannan, was found guilty by a Franklin County
jury of aggravated burglary and theft of property. Accordingly, the
trial court sentenced him to an effective sentence of twelve years,
ten years as a Range III persistent offender for his aggravated
burglary conviction to be served concurrently with his twelve year
sentence as a career offender for his theft of property conviction.
The defendant appealed his conviction to this Court, and we dismissed
the appeal, finding that the appeal was not properly before this Court
because the defendant had failed to file a timely motion for new trial
or a timely notice of appeal. See State v. Ted Ray Brannan, No.
01C01-9704-CC-00148, 1998 WL 242453, at *1 (Tenn. Crim. App. at
Nashville, May 15, 1998). The defendant then sought post-conviction
relief, and the post-conviction court found that the defendant was
deprived of a direct appeal because his counsel was ineffective in
failing to file a motion for new trial or a notice of appeal.
Accordingly, the post-conviction court granted the defendant a delayed
appeal. However, the court found that the defendant's other
allegations of error were meritless. The defendant is now before this
Court on a delayed appeal challenging the post- conviction court's
finding that his other post-conviction issues lacked merit. Although
we find that the lower court should have dismissed the post-conviction
petition when granting him a delayed appeal, in the interest of
judicial economy, we will address the issues pertaining to the post-
conviction petition as well as those in his direct appeal. Having
found that all the issues in this appeal lack merit, the judgment of
the circuit court is affirmed.
http://www.tba.org/tba_files/TCCA/brannanted.wpd

STATE OF TENNESSEE v. LARRY BROWN
Court:TCCA
Attorneys:
Tony N. Brayton, Memphis, Tennessee, for the appellant, Larry Brown.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Jones, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Larry Brown, was convicted by a Shelby County jury of
theft of property with a value over $500.00 and evading arrest. After
a sentencing hearing, the trial court sentenced him to six years for
the theft charge and eleven months and twenty-nine days for evading
arrest. The trial court ordered the sentences to be served
consecutively. On appeal, the Defendant contends that the evidence is
insufficient to support a finding of guilt beyond a reasonable doubt.
We affirm the Defendant's conviction for evading arrest and reverse
and dismiss his conviction for theft of property.
http://www.tba.org/tba_files/TCCA/brownl.wpd

STATE OF TENNESSEE v. WILLIE J. COWAN, JR.
Court:TCCA
Attorneys:
William C. Gosnell, Memphis, Tennessee, for the Appellant, Willie J.
Cowan, Jr.
Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and John Tibbetts, Assistant District Attorney General, for
the Appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Defendant was convicted by a Shelby County jury of vehicular
homicide by intoxication and reckless driving. He received an
effective sentence of nine and a half years in the Tennessee
Department of Correction. The Defendant now appeals, arguing the
following: (1) that insufficient evidence was presented at trial to
convict him of the charged offenses and (2) that the trial court erred
in sentencing the Defendant. Finding no error, we affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCCA/cowanwj.wpd

STATE OF TENNESSEE v. COLLIN J. JOHNSON and JASON S. PORTERFIELD
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and Paul A. Holcombe, III and John W. Price, III,
Assistant District Attorneys General, for the appellant, State of
Tennessee.
John G. Mitchell, Jr. and John G. Mitchell, III, Murfreesboro,
Tennessee, for the appellee, Jason S. Porterfield.
Judge: RILEY
First Paragraph:
The state brings this interlocutory appeal in which it challenges the
order of the Rutherford County Circuit Court authorizing the
admission into evidence of certain testimony relating to the prior
sexual behavior of the alleged rape victim. We affirm in part,
reverse in part, and remand for further proceedings.
http://www.tba.org/tba_files/TCCA/porterfieldjs.wpd

STATE OF TENNESSEE v. LARRY D. SIMMONS and TYCE RENARD JACKSON
Court:TCCA
Attorneys:
Collier W. Goodlett, Assistant Public Defender, Clarksville, Tennessee
for appellant, Larry D. Simmons.
Stacy A. Turner, Clarksville, Tennessee, for appellant, Tyce Renard
Jackson.
Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; John Carney, District Attorney General;
Lance A. Baker, Assistant District Attorney General, for appellee,
State of Tennessee.
Judge: SMITH
First Paragraph:
The appellants, Tyce Jackson and Larry Simmons, were initially charged
with delinquency in a juvenile petition filed in the Juvenile Court
for Montgomery County. This petition arose out of two separate car
jackings occurring in October of 1997. A hearing was held in the
juvenile court upon the State's petition to transfer the appellants to
criminal court for trial as adults. Finding that the appellants
should be tried as adults, the juvenile court transferred the case to
the Montgomery County Criminal Court.
The appellants appealed their transfer by way of a petition for the
writ of certiorari filed in the criminal court. The criminal court
denied the writ. The appellants were indicted on two counts of
especially aggravated kidnapping, two counts of carjacking, two counts
of aggravated robbery, two counts of illegal weapon possession and one
count of aggravated assault. Both appellants ultimately entered
guilty pleas in criminal court to one count of aggravated kidnapping
and one count of aggravated assault. They each received concurrent
sentences of ten and six years respectively. As part of the plea
agreement the appellants reserved a certified question of law
concerning the standard used by the juvenile court in transferring the
appellants for trial as adults. The appellants claim that because
proof at the transfer hearing showed them to be "voluntarily
committable" to an institution for the developmentally disabled or
mentally ill they were not subject to transfer for trial as adults.
In addition, Appellant Simmons alleges that the evidence at the
transfer hearing failed to adequately identify him as a perpetrator of
the offenses.
We find that while Tennessee Code Annotated section 37-1-134(a)(4)(B)
prohibits the transfer to criminal court of juveniles who are
"involuntarily committable" to a mental health facility, no such
prohibition exists with respect to juveniles whose mental disorders
might make them subject to voluntary admission to a mental health
facility. In addition, we find that Appellant Simmons has failed to
present this Court with a record sufficient to permit review of the
issue concerning his identity as a perpetrator of the offenses at
issue in this appeal. The judgments, conviction and sentences are
therefore affirmed.
http://www.tba.org/tba_files/TCCA/simmonsjack.wpd

Inability of county beer board to revoke beer permit because place of
public gathering is built within the prohibited distance for beer
sales
Date: May 8, 2002
Opinion Number: 02-061
http://www.tba.org/tba_files/AG/OP61.pdf

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